The case of the Croydon Advertiser reporter who was warned by police for emailing and door-stepping a woman who was later convicted of fraud raises some worrying legal issues.
Croydon police issued Gareth Davies with a Police Information Notice under the Protection from Harassment Act last year – and have now rejected his complaint about their actions
Inspector Claire Robbins, who investigated the complaint, says his behaviour "went beyond what was reasonable".
But I believe "reasonable" was a random, inappropriate test. Robbins should now explain how she measured what was "reasonable".
In my view, she should have based the decision on government guidelines, drawn up to advise lawyers considering legal action against journalists who are suspected of committing crimes in the course of their jobs.
The guidelines were issued in 2012 by the then Director of Public Prosecutions, Keir Starmer, and apply to the PHA. So they would have been relevant to Davies’ case, even though he was not facing prosecution. And they would have been a more reliable yardstick than an Inspector's arbitrary definition of 'reasonable'.
They say that CPS prosecutors should weigh up … "whether the public interest served by the [journalist’s] conduct … outweighs the overall criminality". No mention of "reasonable".
If Insp Robbins had considered the public interest when dealing with Davies’ complaint, she may have concluded that two emails and a door-knock were entirely justified. Especially as the woman, Neelam Desai, was later jailed for 30 months for fraud involving thousands of pounds.
The decision by Croydon police to issue a PIN is also highly questionable.
When Desai complained to them about harassment, why didn't they refer her to the Press Complaints Comission (as it was then)? The former regulator's hotline / desist service would have been quicker, and more effective. The police didn't have to get involved at this stage, as no crime had been committed. But they chose to.
PINs are a strange tool, and potentially pose a real threat to journalists.
The Protection of Harassment Act doesn’t even mention them. The police devised them. They are not cautions, and have no legal authority. So, as Davies discovered, you can’t appeal them.
They mean: "Back off – or else". They’re a gift to wrongdoers, like Desai, who can use them to stop legitimate investigations by the media, although one would hope that police receving such complaints would use a 'reasonable' level of common sense.
Some facts, then, about PINs. They:
- Inform the recipient that someone has made an allegation of harassment about them.
- Warn them they may be arrested and prosecuted if another allegation is made.
- Can be used as evidence in a trial.
- Are easy to get. The ‘victim’ just has to provide evidence that someone caused them ‘alarm or distress’, on one occasion. Almost everyone I know deserves one!
- Don’t expire. So if Davies emails Desai for a quote when she’s released, he could end up as a criminal, the same as her.
- Are usually served by police officers in person: an unsettling experience for the recipient.
- Can be used as evidence against the recipient, who is asked sign to confirm they have received one.
I believe the media will become familiar with PINs.
They can be used to halt a journalist’s investigation, without judicial scrutiny, appeal or consideration of the public interest. The police are the only safeguard against such misuse. Davies' case raises questions about their judgement – especially as they still think they did the right thing.
And as we live in an era when the police seem to use every law and procedure they can find to arrest, scrutinise and intimidate journalists and photographers, I’ve no doubt they will increasingly add PINs to their armoury. PINs will have a chilling effect on the journalist’s ability to investigate.
The Metropolitan Police have now shown they will use one to deal with a complaint of harassment, rather than follow the accepted practice, and point a complainant at the industry regulator. I have no doubt that this will become the norm. PINs are a great way of subjecting journalists to an unnecessary visit by police and the threat of arrest.
Many feel the Met should have commended Davies for his actions. But they don’t work like that these days. In cases like Davies', they treat right and wrong as equal.
I hope that this post doesn’t cause Insp Robbins and her colleagues any distress, otherwise I might get a PIN too. Actually, I hope it does. They should be distressed about the way a criminal exploited their naivety, ignorance and lack of judgement.
And they should also be distressed about the way Davies showed them how to genuinely serve the public interest: by bringing a criminal to book, despite their efforts to stop him.
Cleland Thom is author of Internet law for journalists